Law & Ordering: US Bill of Rights Edition Quiz

When what would become the current Constitution was drafted in 1787, many people were concerned that it would strengthen the federal government but not provide sufficient protection for civil liberties. To allay these concerns, supporters of the Constitution proposed that a Bill of Rights be added to it through a series of amendments. Originally drafted by James Madison, these eventually took shape as the first 10 amendments that we have today.

I quote the original wording of each amendment as it appears in the Constitution, as ratified on December 15, 1791.
Amendment I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Although the wording of the first amendment refers only to laws made by Congress, over time, the Supreme Court has made rulings that have extended its scope to laws made by the States as well. For example, when the Constitution was first ratified, the clause forbidding establishment of religion was considered only to apply to the Federal government and 12 of the original 13 states had official religions. However, a 1947 Supreme Court decision ruled that the establishment clause applies to all government action, whether at the federal, state, or local level. Similarly, protection of freedom of speech and of the press has been broadened over time to prevent any level of government from infringing upon an individual's right to express their views, however, unpopular, annoying, or distasteful they may be, even if they are factually untrue. Similarly, the government may not compel a person to engage in speech acts they do not agree with, reflecting the underlying concept that the government may not interfere with a person's right to think their own thoughts.

Amendment II: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

A historic forebear of the second amendment is the English Bill of Rights of 1689, which affirms the right to keep and bear arms as a reflection of the natural rights of self-defense and resistance to oppression.

The phrase "well-regulated militia" refers to the existence of a body of citizens with sufficient training in the use of arms who can be called up to fight if the country needs defending. When the constitution was being ratified, many people were concerned that the existence of a standing army posed a threat to common liberty. James Madison argued in the "Federalist Papers" that state militias could mitigate this threat by keeping a federal army in check. Gaining military skills requires time and practice, hence it was considered necessary to allow the citizenry to keep and bear arms so that they can acquire these skills.

The meaning and scope of the second amendment has been the subject of heated debate, especially between advocates of gun control versus gun rights. The former have sometimes argued that the right "to keep and bear arms" applies only to the military not to private individuals. However, in 2008, the Supreme Court ruled that the second amendment grants individuals the right to keep and bear arms for self-defense in the home, although this right is not unlimited and does not disallow restrictions on the carrying of "dangerous and unusual weapons" nor does it preclude prohibitions on possession of guns by convicted criminals and the mentally ill.

Amendment III: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

The effect of this amendment prevents the government from forcing people to billet soldiers in their homes without their permission. Although this rarely comes up today, this was a hot issue at the time of the American Revolution. The amendment was drafted in response to the Quartering Acts enacted by the British parliament. The first of these was enacted in 1765, which required colonists to lodge troops in alehouses, inns, and livery stables if local barracks had insufficient space. After the Boston Tea Party, a Quartering Act was passed in 1774 requiring people to lodge troops in their private homes if needed. The colonists regarded this as one of the "intolerable acts" that justified revolution against the British. Since then there has been little conflict on American soil and the quartering of troops has rarely been the subject of litigation. The third amendment is therefore regarded as one of the least controversial item in the Bill of Rights, even being called the "runt piglet" of the US Constitution by criminal justice writer Radley Balko.

Amendment IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

While the third amendment is rarely invoked these days, the fourth amendment's protections of privacy are more relevant than ever! The fourth amendment has its roots in English common law, summarised by the famous English lawyer Sir Edmund Coke in 1604 as "The house of every one is to him as his castle and fortress." Despite this, in the mid-eighteenth century there was increased use in England of the use of "general warrants" that allowed state officers almost unlimited power to search for anything at any time, with very little accountability. This situation was even worse in Colonial America, where legislation was enacted to allow tax collectors to search people's homes and seize contraband. Unsurprisingly, there was considerable backlash against general warrants and several states passed laws against them.

The fourth amendment reflected this perceived need to protect people's privacy against indiscriminate government intrusion. In practice this means that a search or an arrest generally requires a warrant issued by a judge. Consequently, evidence obtained in violation of the fourth amendment can be ruled inadmissible in court. In more recent times, it has been understood that the amendment includes protection against non-physical intrusions into a person's privacy in the form of phone tapping or accessing cell phone records without a warrant. Despite the protections afforded by the fourth amendment, the US government has been known to engage in scandalous violations of citizens' privacy, such as warrantless surveillance of people's phone and email communication by the National Security Agency from 2001 to 2007.

Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Most people have heard the expression, "to plead the fifth," which refers to this amendment. This means that a person cannot be forced to answer questions that they have reason to believe could incriminate them. A corollary of this is the right to remain silent, which means a person cannot be punished for refusing to give evidence to the police, and such refusal cannot be considered in court as evidence of guilt. Historically, this is rooted in an English common-law tradition that held that the "privilege against self-incrimination" was necessary to prevent coercive measures by the state to force a person to confess, the most extreme of these being torture. The framers of the US Constitution considered the fifth amendment a bulwark against torture and other abuses of the judicial process. Other guarantees of the fifth amendment, namely, that felonies be tried only upon indictment by a grand jury, that a person cannot be subject to double jeopardy (e.g., being tried for the same offense twice), and the right to due process, are also intended to protect individuals against malicious actions by the state that otherwise might hound people endlessly until they were no longer had the resources to defend themselves.

Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The right to a speedy trial was acknowledged in Magna Carta, which states "wee shall not ... deny or delay Justice and right." This right protects the accused from undue and oppressive incarceration before trial. That the trial be public is also a protection against historic abuses of the court involving secret trials, such as the notorious English Court of Star Chamber, which was frequently used to quash dissent against the king's policies and was noted for its harsh and excessive punishments. The remaining clauses of the amendment that guarantee the right to an impartial jury, to be informed of the charges against one, to confront adverse witnesses, and to have legal counsel, all help ensure that the accused receives a fair trial in which all evidence against them is subject to public scrutiny.

Amendment VII: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

The seventh amendment deals with civil lawsuits and has two important features. The first guarantees the right to a trial by jury (later determined to require at least six jurors) in cases exceeding a certain dollar value. The value of $20 in 1789 was equivalent to about $300 in 2020. Despite the ravages of inflation on its buying power, the $20 threshold has never been revised by the courts! The second part of the amendment prevents federal judges from overturning findings of fact by a jury in civil cases. This reflected a prevalent concern that if the Supreme Court were allowed to makes rulings on both the law and facts, then the findings of jury trials in civil cases could be denied. This means that whatever a jury has determined to be factually true in a case cannot be re-examined in any court.

The seventh amendment is generally considered one of the most straightforward, even self-explanatory items in the Bill of Rights.

Amendment VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The wording of the eighth amendment is nearly identical to a clause in the English Bill of Rights of 1689, "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Although not guaranteed in all cases, where applicable, the right to bail before trial is based on the principle that a person ought to have the right to freedom before conviction, so as to prepare the best defence, and to prevent the infliction of punishment prior to conviction. Therefore, bail should not be set so high as to deny a person any chance of freedom before trial. This was also considered an extension of the presumption of innocence. Similarly, excessive fines could be abused to effectively deprive people of their rightful property without due process. For example, in 1998, the Supreme Court ruled on a case in which the government confiscated $357,144 from a man who had failed to report possession of over $10,000 while leaving the United States, stating that taking the entire amount of the man's money was ""grossly disproportional" to the nature of the offence.

While open to considerable interpretation, the prohibition of cruel and unusual punishment reflects a concern about protecting people from arbitrary and disproportionate punishments, even if they have been convicted of a crime. Patrick Henry in particular was concerned that, without checks on its power, the Federal Government could use torture to extract confessions. Supreme court justices have ruled generally that punishments must not be degrading to human dignity through their severity, wholly arbitrary, patently unnecessary when less severe punishments will do, or clearly and totally rejected throughout society. In practice, certain historic punishments, such as crucifixion, burning at the stake, drawing on the rack, and thumbscrews have been strictly forbidden under all circumstances.

The question of whether the death penalty constitutes cruel and unusual punishment has been subject to intense debate. However, in 2019, the Supreme Court explicitly stated that the Constitution allows capital punishment, as the fifth amendment mentions "capital crime," although this must be carried out in a humane manner. On the other hand, capital punishment for crimes not involving death of the victim has generally been ruled to be excessive and therefore cruel and unusual.

Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

James Madison added the ninth amendment to assuage concerns about a danger that listing what rights people had could later be taken to mean that anything not specified was not a right and could therefore be prohibited, even for things people had customarily been allowed to do. Therefore, this amendment makes clear that enumerating the people's rights does not increase the powers of the national government in areas not enumerated.

The exact scope of the ninth amendment and what it protects have been debated. Justice William Douglas argued that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." This means that certain rights not explicitly mentioned can be inferred from enumerated rights, so that certain rights can be found in the "shadows" of other parts of the Constitution. For example, although the right to privacy is not explicitly mentioned, it is strongly implied by several amendments. More specifically, in a 1965 case, the Supreme Court ruled that a statute prohibiting use of contraceptives was an infringement of the right of marital privacy and therefore unconstitutional. Nevertheless, it remains unclear how rights not enumerated in the Constitution might be identified.

Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

When the Constitution was first adopted by Congress, many states refused to ratify it unless there was a provision that state's rights would be protected from encroachment by the Federal Government. Hence, the tenth amendment was added to make explicit that the states retained those rights that were not explicitly surrendered. James Madison acknowledged criticisms that the amendment may be considered superfluous but argued that "there can be no harm in making such a declaration," noting that "several are particularly anxious that it should be declared in the Constitution." Although the Supreme Court has argued that the tenth amendment is simply a truism that adds nothing to the Constitution as originally ratified, it has also ruled that the amendment prohibits the federal government from forcing states to pass or not pass certain legislation, or to enforce federal law.